The Court noted that the law was rather grey on whether land that had been set apart for use for a certain public purpose, but where no lease or allotment letter had previously been issued, could be allocated to an individual for private use. Further where Government land had been specifically assigned for a specific public purpose, so long as that public purpose remains, that land ought to be considered to be part of Government land that cannot be alienated to private individuals for private use. The Court posed this question: “But does it mean that because the Government has not issued an allotment letter to such land, to say a Government parastatal or Government Department, and has not issued a title to the body that is supposed to make use of the land, then the said land can be allocated to private individuals for private use? I do not think so. If this was to be the position, then developed infrastructure including roads, hospitals, schools, and even courts could be allocated to private individuals simply because no allotment letter or title had been issued. People would literally loot and grab all public infrastructure”. The court thus held that so long as land had, or has been, set aside by the Government for specific use, which use is apparent from the pertinent records, including survey plans and/or PDPs, or visible on the ground, then that land must be considered to be part of “alienated Government land.”
In addition, the court held that the Commissioner of Lands had no power to allocate the disputed property and the allocation of it to the first allotee was not within his delegated powers as provided for in Section 3 of the GLA. Therefore, the allocation of the land was an illegal act on the part of the 7th Defendant who was personally culpable on grounds of fraud and illegality as decided in the case of Ethics and Anti-Corruption Commission vs Judith Marilyn Okungu & Another, Court of Appeal at Nairobi, Civil Appeal No. 183 of 2014.
On the issue of whether the Defendants were innocent purchasers for value without notice, the court held that the Defendants were not innocent purchasers for value as the 2nd Defendant was an employee of KRA in the Customs Department and a custodian of the suit property. Further, the doctrine could not be used to sanitize a title that is null and void ab initio and neither can it breathe life into a null title.
In conclusion, the court found that that the conversion of and renumbering of LR No. MN/III/293 to LR No. MN/III/2974, and creation of subdivisions thereof were ultra vires, irregular, fraudulent, and illegal and consequently null and void; the making of a grant in respect of LR No. MN/III/2974 to the 2nd Defendant was ultra vires the 7th Defendant’s statutory powers, irregular, fraudulent, and illegal and consequently null and void; that the register be rectified by cancellation of the grant to the 2nd Defendant and subsequent transfers in respect of LR Nos. MN/III/3650, 3651, 3652, 3653, 3654, 3655, 3656, 3657, 3658, and 3659. In addition, the 7th Defendant was found to be in breach of his fiduciary duty and position of trust and was condemned to pay general damages in the sum of Kshs. 1,000,000/=.
Finally, the Defendants were ordered to give vacant possession of the land and to remove all the structures on the suit property within 30 days at their own cost and meet the costs of the suit.
